Court rules against man convicted by eyewitness ID

The Supreme Court declined Wednesday to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, despite concerns that eyewitness identification plays a key role in innocent people going to prison.

In a case dealing with a narrow slice of the issue of identifying a suspect, the court voted 8-1 to uphold the theft conviction of Barion Perry in New Hampshire state court. Perry argued that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police.

Judges already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, lawyers can cross-examine a witness and juries can weigh the reliability of the testimony.

Ginsburg said a prime reason for excluding such testimony when the police are involved is deterrence. "Where there is no improper police conduct, there is nothing to deter," she said.

Other factors apart from suggestiveness also lead to mistakes by eyewitnesses, Ginsburg said. The suspect's race, poor vision, the passage of time, stress and the duration of the encounter all may bear on the reliability of an identification, she said.

Justice Sonia Sotomayor wrote a dissenting opinion in which she said her colleagues should have been more concerned about the reliability of eyewitness identifications than police deterrence.

"The empirical evidence demonstrates that eyewitness misidentification is the single greatest cause of wrongful convictions in this country," Sotomayor said.

The court first warned of the dangers of eyewitness testimony in the 1960s, saying eyewitness identifications can have a powerful influence on juries, but also could be untrustworthy.

More recent evidence has only bolstered arguments about the danger of relying on what people think they saw. The vast majority of the nearly 300 people exonerated through the use of genetic evidence were convicted at least in part on the basis of eyewitness testimony, according to the Innocence Network, which works on behalf of convicts who claim newly discovered or untested evidence can lead to their exoneration.

In Perry's case, police were questioning a woman who said she saw someone break into a car in the parking lot of her apartment building. Unprovoked by the police, the woman identified Perry from her apartment window as he stood in the lot with a police officer. Perry tried to keep her from testifying, arguing that she picked him out only because he was standing beside an officer.

The trial court allowed the testimony and the New Hampshire Supreme Court upheld Perry's conviction.